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F I L E D

United States Court of Appeals


Tenth Circuit

PUBLISH

AUG 15 2003

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

JOHN HENRY MAY,


Petitioner-Appellant,
v.

No. 03-7045

RANDALL WORKMAN,
Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 02-CV-649-P)
Submitted on the briefs: *
John Henry May, pro se.
Diane L. Slayton, Assistant Attorney General, District of Oklahoma, Oklahoma
City, Oklahoma, for Respondent-Appellee.
Before EBEL, HENRY, and HARTZ, Circuit Judges.
HENRY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore submitted without
oral argument.
*

John May, a state prisoner appearing pro se, seeks a certificate of


appealability (COA) to appeal the district courts denial of his 28 U.S.C. 2254
habeas petition. We deny his request for a COA and dismiss the appeal.
On December 4, 1994, Mr. May was convicted of first degree murder in
Oklahoma state court and sentenced to life imprisonment without parole. His
conviction was affirmed by the Oklahoma Court of Criminal Appeals on January
9, 1996, and on April 8, 1996, the ninety-day period for filing a petition for a writ
of certiorari to the United States Supreme Court expired, thus making his
conviction final. As detailed in the district courts order, Mr. May filed a series
of motions between 1997 and 2002 requesting transcripts at public expense and
mandamus relief regarding his motions for transcripts. All of these motions were
denied, as were Mr. Mays various appeals. Mr. May subsequently filed his
federal petition for a writ of habeas corpus on November 15, 2002.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Mr.
May had until April 24, 1997 to file a federal habeas petition. 28 U.S.C.
2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding that
when a conviction became final before AEDPAs effective date of April 24, 1996,
a petitioner has one year after AEDPAs enactment to file a 2254 petition).
Mr. May filed his federal habeas petition on November 15, 2002, long after
the AEDPA limitations period had expired. The district court held that Mr. Mays
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federal habeas petition was time barred and that equitable tolling was not
warranted. Accordingly, the district court dismissed the habeas petition and
denied a COA.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 123 S. Ct. 1029,
1039 (2003). A COA can issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district courts resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further. Miller-El, 123 S. Ct. at 1034. After careful review of the
record, we conclude the requirements for issuance of a COA have not been met.
The one-year period of limitation for filing a federal habeas petition is
tolled or suspended during the pendency of a state application for post-conviction
relief properly filed during the limitations period. 2244(d)(2). As established
above, for purposes of 2244(d)(1)(A), Mr. Mays conviction became final on
April 8, 1996. The district court correctly determined that the limitations period
should not be tolled during the pendency of Mr. Mays various motions for
transcripts and petitions for writs of mandamus relating to those motions. See
Rec. vol. I, doc. 10 at 4-5 (Dist. Ct. Order, filed Mar. 6, 2003) (citing Osborne v.
Boone, No. 99-7015, 1999 WL 203523, at **1 (10th Cir. April 12, 1999)
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(unpublished disposition) (holding that attempts to obtain trial records and


transcripts at public expense are not collateral proceedings which would result in
the tolling of the filing period under 2244(d)(2)) (citing Hoggro v. Boone, 150
F.3d 1223, 1226-27 (10th Cir. 1998))).
Mr. May filed his petition almost five years after the expiration of the
one-year limitations period set forth in 28 U.S.C. 2244(d)(1)(A), without a
showing of entitlement to either statutory tolling or equitable tolling. We have
carefully reviewed Mr. Mays brief, the district courts order, and the material
portions of the record, and conclude that Mr. May has failed to raise a debatable
issue as to whether his petition was improperly dismissed as time-barred.
Accordingly, we DENY Mr. Mays application for a COA, and we DISMISS the
matter.

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